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New Jersey Division of Youth and Family Services v. A.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 29, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.M., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF P.M., JR., C.M., A.P., AND S.W., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Union County, Docket No. FG-20-55-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 6, 2009

Before Judges Cuff, Fisher and C.L. Miniman.

In this appeal, we review an order terminating the parental rights of A.M. to her four children.*fn1 On appeal, A.M. does not dispute that her prolonged abuse of cocaine, heroin and alcohol caused harm to her children and that she was unable to eliminate the harm to them. She contests the findings that the Division of Youth and Family Services (DYFS) adequately considered alternatives to termination of her parental rights and that termination of her rights will not do more harm than good. An integral part of her argument is her contention that the trial judge erred because he did not consider kinship legal guardianship (KLG) and did not consider the wishes of the older children. We affirm.

A.M. is the mother of four children. DYFS has been involved with her family since the birth of her son, P.M., Jr., on April 18, 1993. A.M. tested positive for cocaine during prenatal care and she admitted drug use during her pregnancy.

Nevertheless, P.M., Jr., was discharged to the care of his mother.

A.M. gave birth to her daughter, C.M., on January 24, 1996. Once again, A.M. tested positive for cocaine and opiates. The child was released in the care of A.M. DYFS provided a nurse to help care for the child, but the agency lost contact with A.M. and the children until November 1996 when she was located in a women's shelter in Atlantic County. A.M. acknowledged a drug problem and announced she would seek treatment and enroll in Alcoholics Anonymous and Narcotics Anonymous in December.

DYFS removed the children, P.M., Jr., and C.M., on December 5, 1996. The women's shelter informed DYFS that A.M. left the shelter on December 4 stating that she was going to run some errands and did not return. She left the children unattended. The children were placed with their maternal grandmother and A.M. commenced treatment for her substance abuse on December 6. The maternal grandmother obtained legal custody of the children sometime before May 14, 1997.

Nevertheless, the children were observed with their mother in a motel in Burlington County in late May 1997. The children were returned to the maternal grandmother after A.M. tested positive for cocaine twice in June and July 1997. She also was incarcerated in the county jail in October 1997.

Between June 1997 and July 1998, the children remained with their maternal grandmother. It is unclear where A.M. resided at this time, although she attended dinners at the women's shelter in Atlantic County from time to time. In July 1998, the children were sent to live with their grandfather in Newark while the maternal grandmother recovered from a kidney transplant. When she died in late July 1998, DYFS learned they were living with a maternal uncle in Union County.

There was no further DYFS involvement with the family until April 26, 2000. At that time, the agency received a referral that P.M., Jr., now seven years old, was not enrolled in school, and the maternal uncle was a known drug user, but was enrolled in a rehabilitation program. An investigation substantiated the allegations and further found that the children were dirty and another maternal uncle with an alcohol abuse problem also resided in the home. The home was found "minimally adequate" with regard to cleanliness. Despite promises, P.M., Jr., was not enrolled in school, and a visit to the home in early May 2000 found A.M. alone with the children. She was disheveled and under the influence of drugs.

The children were removed from the home and placed in foster care. A month later, A.M. was incarcerated again for a probation violation. She was found in possession of heroin and drug paraphernalia. A September 14, 2000 psychological examination concluded that A.M.'s prognosis for change was poor without long-term rehabilitation and that she lacked the "behavioral, emotional, and economic stability to be able to provide for the needs of her children and possibly herself, now or in the near term." A.M. was released from jail shortly thereafter.

The child protective litigation proceeded until June 12, 2001, when the judge approved a permanency plan of select home adoption and termination of parental rights due to A.M.'s continued drug abuse, her failure to complete substance abuse programs, and the time the children had been in out-of-home placements. DYFS filed a complaint to terminate A.M's parental rights on August 22, 2001.

Three days later, A.M. gave birth to A.P., her third child. Because DYFS concluded that A.P. was not in imminent danger, she remained in the care of her mother. As the termination of parental rights litigation proceeded, C.M. was placed in a pre-adoptive foster home in October 2001. After several visits, C.M.'s foster parents requested transfer of P.M., Jr., to their home. This was accomplished on April 29, 2002. At this time, P.M., Jr., was nine years old and C.M. was six. Bonding evaluations were conducted in October and November 2002.

Although the foster parents were found to be competent and reliable caretakers of the children, knew intuitively when to play with them and when to observe the children, and established and sustained structure for the children, the children remained emotionally bonded with A.M. In late 2002, A.M. was drug free and regularly visited the children.

In the meantime, the foster parents expressed frustration about the protracted termination of parental rights proceedings. They advised DYFS that the delay was taking its toll on P.M., Jr., who had begun to act out in school. They also expressed that it was important to minimize the contact between A.M. and her children.

Due to A.M.'s progress, DYFS changed its case plan from termination of parental rights to reunification of the children with their mother. The termination of parental rights complaint was dismissed on March 12, 2003, and the trial court reopened the child protective services litigation. The children remained with their foster parents, and A.M. was advised to obtain suitable housing. She did so and her boyfriend, who was a substance abuser, commenced living with A.M. The older children returned to their mother's care in March 2004. Her fourth child, S.W., was born on October 27, 2004.

After giving birth to S.W., A.M. began to miss court dates and appointments with her in-home counselor. DYFS received a referral in February 2005 that S.L., A.M.'s boyfriend and S.W.'s father, beat P.M., Jr., and left him with two black eyes and a bruised cheek. Three months later, Plainfield police executed a search warrant at A.M.'s apartment and found marijuana and drug paraphernalia. A.M.'s two youngest children were placed in the care of S.L.'s mother, and the two older children remained with A.M. S.L. was arrested and charged with fourth degree possession of drug paraphernalia and possession of marijuana. On June 3, 2005, P.M., Jr., and C.M., and A.M.'s two youngest children, A.P. and S.W., were removed from her care and placed in foster care. C.M. returned to a prior foster placement; P.M., Jr., was placed with a family in Edison; and the two youngest children were placed together in a foster home in Union. In July 2005, P.M., Jr., returned to the foster family with whom he had resided between April 2002 and March 2004; C.M. joined her brother in September 2005.*fn2 In May 2006, A.P. and S.W. returned to the paternal grandmother.

Meanwhile, A.M. was referred for a substance abuse assessment where she tested positive for cocaine. She was referred for treatment but did not comply with that referral or referrals to parenting classes, a psychological evaluation, visitation, individual counseling, or therapeutic supervised visitation. Finally, on May 11, 2006, A.M. submitted to a psychological evaluation. Dr. Moorehead opined that A.M. had a bipolar disorder, cocaine dependence in partial remission, heroin dependence in partial remission, and a personality disorder not otherwise specified with paranoid and borderline features. He recommended a referral to a psychiatrist for medication. He opined that return of her children to her care was contingent on her emotional stability, continued abstinence, completion of her education, obtaining marketable job skills, and six months of employment at a wage sufficient to support her children. By this time, P.M., Jr., was thirteen years old; C.M. was ten. A subsequent psychiatric examination concurred in most respects with Dr. Moorehead's evaluation of A.M.

In July and August 2006, another psychologist performed psychological evaluations of P.M., Jr., and C.M., and a clinical interview with the foster parents. He reported that the children still sought reunification with their mother. On the other hand, the foster parents emphasized that they want the children but did not want to "co-parent" the children with A.M. or her family.

In September 2006, A.M. began substance abuse treatment and started a medication regimen. In November 2006, DYFS filed another complaint seeking termination of A.M.'s parental rights to the youngest children. It did not file a complaint for termination of A.M.'s parental rights to P.M., Jr., and C.M. until April 4, 2007. In February 2007, A.M.'s treatment provider characterized her attendance as sporadic; by September 2007, A.M. was consistently noncompliant with her MICA treatment, failed to attend individual therapy sessions, and was terminated from the program.

Bonding evaluations of the two youngest children conducted in January 2007 suggested that neither "child would likely experience significant and enduring harm if their relationship with their mother was severed." Although the children understood that A.M. was their mother, their paternal grandmother, with whom they lived, provided stability and security in their lives and the children expressed distress when separated from her.

The May 29, 2007 bonding evaluation with A.M. and the June 12, 2007 bonding evaluation of P.M., Jr., C.M. and their foster parents demonstrated that the older children do not have a healthy emotional bond with A.M. On the other hand, the foster parents had formed a healthy and mutually gratifying parent-child relationship.

By January 2008, A.M. remained noncompliant with treatment and a psychiatrist opined that she had not improved functionally. The psychiatrist reported that there was a fairly high risk that A.M. would relapse and resume use of illicit substances or alcohol. He did not believe that she could provide even minimally adequate care then or in the foreseeable future to these children. Virtually on the eve of the commencement of the trial, A.M. tested positive for cocaine.

Following a four-day trial and receipt of testimony from two caseworkers, Drs. Singer and DeNigris, who had conducted bonding evaluations, and Dr. Iofin, a psychiatrist, Judge Frederic Kessler rendered a comprehensive oral opinion. Referring to the testimony of the three expert witnesses, the judge found:

Collectively, they reinforced the already compelling factual evidence that [A.M.] is unable or unwilling to provide a safe and stable home for the children. Both Dr. D[e]Nigris and Dr. Singer were also convincing in their testimony that separating the children from their respective foster parents would cause serious and enduring psychological harm.

Judge Kessler also found that DYFS had proven by clear and convincing evidence that A.M. had demonstrated over a period of fifteen years that she was unable to care for her children and had consistently endangered their health and safety. He also found that A.M. was unable or unwilling to eliminate the harm caused to each child by her behavior and that further delay would simply magnify the harm to them.

Judge Kessler also found that DYFS had made reasonable efforts to assist A.M. to correct her behavior and to foster reunification of this family. Finally, he found that termination would not do more harm than good. As to the youngest child, he found that S.W. and A.M. had not developed a parent-child relationship. A.P. was ambivalent about her mother. The relationship between A.M. and her oldest children was significantly more complicated. They had been with their mother on and off over fifteen and twelve years respectively. Nevertheless, a healthy parent-child relationship did not exist between mother and children.

A.M. argues that the June 23, 2008 order terminating her parental rights must be reversed because the record does not support by clear and convincing evidence that DYFS made reasonable efforts to avert splintering this family and fostering reunification. She urges that the court erred in failing to consider KLG as an alternative to termination of her parental rights. We disagree.

The factual and procedural history just related is an abbreviated version of the lengthy involvement by DYFS to support A.M. and her children and to maintain them either with her or family members. Over the course of fifteen years, she repeatedly rejected these efforts, participated half-heartedly in the services provided to her, and repeatedly relapsed and resumed use of illicit substances. In fact, she tested positive for cocaine on the eve of trial.

Placements with maternal relatives proved fruitless to protect the health and safety of the children. A.M.'s mother allowed the children to reside with A.M. in a motel. The maternal uncles failed to enroll P.M., Jr., in school, and the house met only the barest minimum standards for cleanliness. Moreover, they left the children unsupervised with A.M. while she was under the influence of drugs. Indeed, the record demonstrates that P.M., Jr., and C.M. enjoyed stability and security only with the foster parents who opened their home to them on two occasions. A.P. and S.W. enjoyed safety and security only in the care of S.W.'s paternal grandmother.

A.M., however, maintained at trial and reiterates on appeal that she desired reunification with her children but would not oppose KLG for P.M., Jr., and C.M. In response, the trial judge inquired if KLG had been discussed with the paternal grandmother, the caretaker of A.P. and S.W., and the foster parents of the older children. Counsel for DYFS replied that the paternal grandmother had been presented with both options and elected adoption. The record also reveals that the foster parents of P.M., Jr., and C.M. carefully considered a long-term foster care placement or adoption over several years and ultimately concluded that adoption was the best course.

KLG is "a relatively new concept" that "provides an alternative to termination of parental rights and subsequent adoption." Div. of Youth & Family Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008). The legislative declaration accompanying the KLG Act, N.J.S.A. 3B:12A-1 to -7, states:

An increasing number of relatives, including grandparents, find themselves providing care on a long-term basis to these children without court approved legal guardianship status because the caregivers either are unable or unwilling to seek termination of the legal relationships between the birth parent and the child, particularly when it is the caregiver's own child or sibling who is the parent. In these cases, adoption of the child is neither feasible nor likely, and it is imperative that the State create an alternative, permanent legal arrangement for children and their caregivers. One such alternative arrangement, which does not require the termination of parental rights, is a court awarded kinship legal guardianship that is intended to be permanent and self-sustaining, as evidenced by the transfer to the caregiver of certain parental rights, but retains the birth parents' rights to consent to adoption, the obligation to pay child support, and the parents' right to have some ongoing contact with the child; c. In considering kinship legal guardianship, the State is seeking to add another alternative, permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely . . . . [N.J.S.A. 3B:12A-1 (emphasis added).]

Accordingly, KLG does not terminate parental rights. See N.J.S.A. 3B:12A-4a(2)-(5). "The birth parents retain the right to: (1) consent to adoption, N.J.S.A. 3B:12A-4a(2); (2) change the child's name, [ibid.]; and (3) visit the child, N.J.S.A. 3B:12A-4a(4)." D.H., supra, 398 N.J. Super. at 341.

The standard that a trial court must apply to establish KLG is very similar to the best interests test set forth in N.J.S.A. 30:4C-15.1a(1)-(4). The court must find by clear and convincing evidence that:

(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;

(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;

(3) in cases in which the [D]ivision is involved with the child . . . (a) the [D]ivision exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and

(4) awarding kinship legal guardianship is in the child's best interests. [N.J.S.A. 3B:12A-6d (emphasis added).]

Thus, if "adoption is readily available . . . , KLG cannot be used to defend against termination of parental rights." D.H., supra, 398 N.J. Super. at 341 (citing N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 507 (2004)). This record clearly demonstrates that KLG was not an option for these children.

The protracted involvement of DYFS in the lives of A.M. and her children, which included multiple Title 9*fn3 and Title 30*fn4 proceedings, allowed for substantial interaction between caseworkers and the foster families caring for the children. The ultimate permanency plan of termination of parental rights followed by adoption by the foster parents is the fruit of numerous conversations and conferences over many years focusing on the appropriate permanency plan for each child.

On January 23, 2006, a DYFS caseworker met with P.M., Jr.'s, and C.M.'s foster parents to discuss the possibility of KLG. The foster parents, however, refused to consider KLG as an option because "they feel KLG is not a permanent plan for these children due to the fact that they are bonded to their mother and how they would seem as the bad persons should they even try to limit daily contact with [A.M.]. . . . [T]hey are unable to pursue KLG [but] are willing to keep kids in [their] home as long as necessary."

As the proceedings continued and the children aged, P.M., Jr.'s, and C.M.'s foster parents' views changed. During the clinical interview with the foster parents, when asked about permanency, one of the fathers replied,

We thought about it long and hard. Neither one of those options are tenable. With KLG, we will have to negotiate a relationship with the children's mother. That is unacceptable. We don't want to be involved with their biological relatives, including the mother. With adoption, the children don't want to be adopted, and we feel we have to be respectful to that. We told [DYFS] we would be interested in adopting younger kids. We know the birth mother personally. We have different values. We want boundaries. We love the kids, and we're prepared to foster them until they're 18 or 21 or whenever. We know we're parents to them.

The other foster father agreed that they did not want to "co-parent" P.M., Jr., and C.M. and did not want to be the "bad guys" when they made choices with which A.M. might not necessarily agree.

By February 2007, the foster parents again expressed interest in adopting the children, stating that "they were not sure if they could let them leave after caring for them for so many years." They cautioned that their interest depended on the amount of time the adoption process would take.

On March 20, 2007, the foster parents informed DYFS that they were not going to give it their letter of interest for adoption because they were "still planning to talk to [A.M.] on their own to find out whether she was planning to stay away after the adoption was finalized. [The foster parents'] concern is that [A.M.] knows where the children live and has their phone number."

The record does not contain the same extensive notes about consideration of permanency plan options with the paternal grandmother as with the foster parents of the older children. No one disputed, however, that the option was presented to her or that she elected to pursue the adoption option.

This record supports the remedy of termination of parental rights rather than KLG for several reasons. First, KLG is not a permanency option when persons have stepped forward and agreed to adopt a child. Second, A.P. and S.W. are young and the KLG remedy is designed principally to provide a permanency option short of termination and adoption for older children. D.H., supra, 398 N.J. Super. at 339. Finally, this record demonstrates that both sets of foster parents have devoted years of care and concern to these children. They struggled for years not only to provide safe, stable and secure homes for these children but also to prudently decide how they could best meet the needs of the children. The foster parents of P.M., Jr., and C.M. are devoted to them. Their rejection of a permanency plan short of adoption was not made in haste and reflects serious consideration of the best interests of these children that cannot be disregarded.

The June 23, 2008 order is, therefore, affirmed.


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